Wyoming Asks Court to Affirm that Expedia and Others Owe Unpaid Taxes

The state-by-state tax battles may be wearing on Expedia and its peers, but hundreds of millions in back taxes will wear even more, so the fight continues.

— Jason Clampet

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The state attorney general’s office is asking the Wyoming Supreme Court to uphold a ruling that would force online travel companies to pay more in taxes.

Lawyers for the state recently filed documents saying the companies should collect and remit taxes on the full amount of retail lodging sales.

A group of online booking services, including Travelocity and Expedia, say they shouldn’t have to pay the full taxes because they do not have physical presences in the state and they do not provide actual lodging services.

The companies’ model is to buy a group of rooms from a hotel at a discounted rate and sell them directly to online customers at marked-up prices. The companies want to continue the practice of collecting and remitting taxes to the state based on the price of the lower rate that they negotiate with the hotels instead of the higher price offered to consumers.

For example, a company could reserve a block of rooms from a hotel for $80 apiece. The company then would offer the rooms at $100 each.

According to the companies, the state should then collect sales taxes based on the $80 instead of the $100.

The Wyoming Board of Equalization issued a ruling earlier in the year that would cause the companies to pay taxes on the full sales price.

But the companies appealed to the state Supreme Court. The state is not enforcing the board’s ruling until the court makes its decision.

Lawyers for the state wrote in their new filing that the companies are unjustly trying to seek “refuge” from the state’s taxes.

“The (companies) incorrectly contend that because they do not physically operate hotels, they are not vendors and are not responsible for the collection of Wyoming’s excise taxes,” wrote state Attorney General Peter Michael.

He is the state’s lead lawyer on the case. He added, “Because the (companies) have implemented a business model in which they directly sell hotel rooms to their customers and collect taxes on those transactions, they are liable as vendors for the proper collection of taxes.”

Larry Wolfe is the attorney for Expedia, Travelocity, Priceline, Hotwire, Orbitz, Cheaptickets and Hotels.com. He previously argued that the companies shouldn’t be considered “vendors” because they do not actually grant the reservations or sell the rooms.

“Such a right is conferred only by the hotel, and only when the guest checks in and is given the key,” he wrote in a filing earlier this summer.

The state also argued that the companies’ practice violates Wyoming law because they don’t disclose to consumers the actual sales tax they are paying.

“Because the (companies) bundle all charges, fees and taxes, their customers cannot reasonably discern which portion of the price is paid for the (companies’) alleged reservation services,” Michael wrote. “The (companies) do this to avoid disclosure of their markups.”

Department of Revenue Director Dan Noble has said that if the state wins the dispute, his agency will begin auditing the sales tax payments for the past several years to see how much the state is owed.